Weston v. Aetna Casualty and Surety Company, Civ. A. No. 10620.

• Decision Date: 28 December 1962
• Docket Number: Civ. A. No. 10620.
• Citation: 212 F. Supp. 768
• Parties: Carey WESTON, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Louisiana

212 F. Supp. 768

Carey WESTON, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, Defendant.

Civ. A. No. 10620.

United States District Court E. D. Louisiana, New Orleans Division.

December 28, 1962.

Sims & Mack, Robert J. Mack, Hammond, La., for Carey Weston.

Adams & Reese, John T. Cooper, New Orleans, La., for Aetna Casualty & Surety Co.

R. B. Walden, Baton Rouge, La., for State Hospital Board, Baton Rouge, La.

AINSWORTH, District Judge.

Plaintiff, alleging total and permanent disability, has brought suit for workmen's compensation and medical benefits against the insurer of Frank L. Richardson under a policy of compensation insurance covering all of his operations within Louisiana and Mississippi.

On January 28, 1960, plaintiff was working as a laborer engaged in cutting pulpwood and transporting it from timberland owned by Houston Stafford to the loading ramp of Richardson, in a truck owned by Lee Andrews, an elderly, illiterate, Negro, who for many years has worked in the pulpwood industry, cutting and hauling logs and pulpwood and performing related duties. While driving the truck plaintiff drove into a roadside ditch on the property of Stafford, causing a container of gasoline, which was on the rack above the driver's seat, to fall across the hood of the truck, resulting in an explosion and fire. Plaintiff suffered severe burns over a great portion of his body.

Plaintiff contends that Lee Andrews, the owner of the truck which he was driving, is a subcontractor of Richardson, within the purview of Section 1061 of the Louisiana Workmen's Compensation Statute (LSA-R.S. 23:1021 et seq.); that Lee Andrews' work was incidental to the business of Richardson; therefore, that as a member of the working crew of Andrews, plaintiff is entitled to compensation from Richardson's insurer. Defendant resists liability, contending that the legal relationship between Andrews and Richardson is that of a bona fide seller and purchaser of pulpwood rather than contractor and subcontractor.

The evidence shows that for many years prior to the date of the accident Lee Andrews regularly supplied wood to Richardson's ramp. Richardson has certain contracts with Crown Zellerbach Corporation under which he must deliver all pulpwood cut on Crown Zellerbach lands to the latter's wood yard. During the term of these contracts Richardson is obligated to deliver a certain amount of pulpwood to the Crown Zellerbach plant at stipulated times and for a set price. Richardson also has other wood operations in addition to the Crown Zellerbach activities. Despite these operations Richardson insisted repeatedly that he had no employees though he finally admitted on cross-examination the employment of a supervising foreman for the Crown Zellerbach operations. The Claims Supervisor of defendant insurance company testified that since January 1, 1960, he had adjusted more than 50 claims resulting from employee injuries occurring in woodcutting operations in which Richardson was the employer. An accident form supplied by defendant insurance company to Richardson for the purpose of reporting injuries was filled out and furnished defendant as to the present accident and injuries to plaintiff. It was signed by Richardson's son, and shows the name of the employer of plaintiff as F. L. Richardson.

The evidence also shows that the work of Lee Andrews and his helpers is controlled to a great extent by Richardson; the men are frequently directed by Richardson as to time, place and manner of the cutting, loading and delivery of wood. Richardson likewise directs the transfer of men from woodcutting operations on the Crown Zellerbach land to privately owned land.

There is testimony to the effect that a short time prior to the accident Houston Stafford, on whose land the injury occurred, visited Richardson's office and personally offered to sell Richardson the pulpwood from his land. Thereupon Richardson agreed with Stafford to arrange to send Lee Andrews to meet Stafford in order to cut and deliver the wood to Richardson. Richardson also agreed with Stafford that he would hold the "stumpage" (i. e., the amount due the landowner for his wood) and Stafford could come to him and pick it up after the wood was delivered.

We believe that the facts show a vendor-vendee relationship between Stafford and Richardson rather than between Stafford and Andrews. Andrews was therefore hired by Richardson as a subcontractor.

It is our opinion that the necessary elements of a sale were present at the time of the meeting between Stafford and Richardson and that the sale was perfected at that time. (See LSA-Revised Civil Code Articles 2456 and 2439.) Thereupon Richardson became the owner of the wood sold to him by Stafford, which was subsequently cut and hauled by Andrews and his employees, of which plaintiff was one. Although Andrews testified that he could "sell" the wood which he cut and hauled to anyone he considered he had a primary obligation to Mr. Richardson, because of their long-standing relationship and because Richardson had always been fair with him. Andrews was financially obligated to Richardson. Whether or not Andrews could on occasions "sell" wood to someone other than Richardson is immaterial. The pertinent issue is the relationship of the various parties under the circumstances of the particular transaction which gave rise to the injuries suffered by plaintiff. It is extremely doubtful that Stafford would have sold his wood to Andrews. Stafford looked to Richardson for performance and particularly for payment for his "stumpage."

In an attempt to show that Andrews was an independent contractor whose only relationship to Richardson was that of vendor, defendant relies on Andrews' testimony that he owns two trucks; that on the date of the accident he was using his trucks to deliver the pulpwood cut from Stafford's property to the Richardson ramp. Andrews also testified that he hired and paid plaintiff. However, the working relationship between plaintiff and Andrews is immaterial if in fact Andrews was performing the work of a subcontractor working for a principal (Richardson). The pertinent part of LSA-Revised Statutes 23:1061 reads as follows:

"Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him * * *."

The question of whether the duties of Andrews and his helpers constitutes any part of the work undertaken by Richardson and whether the Richardson-Stafford transaction was a part of Richardson's trade, business, or occupation, must be determined by the nature of the principal's business and the duties of the subcontractor. Richardson is admittedly in the pulpwood business; he has for many years been engaged in contracting for purchasing, selling, cutting and delivering timber, particularly under contracts with Crown Zellerbach. The pulpwood business is his means of livelihood. Andrews' operations consist in cutting and hauling pulpwood which he has done for many years in connection with Richardson's operations. The duties of Andrews are an integral part of Richardson's business and inseparable from it. In Belaire v. Elder, 49 So.2d 508, La. App., 1 Cir. (1950), it was held that where defendant was in the lumber business, and a contractor cut and delivered timber to the defendant company in a rough state, under the direction and control of defendant, after which defendant company dressed the lumber and sold it to retail outlets, the contract was necessary and incidental to the business of defendant company so as to place plaintiff, an employee of the contractor, under the provisions of the Louisiana Workmen's Compensation Act. In Thibodaux v. Sun Oil Company, 40 So.2d 761, La. App., 1 Cir. (1949), the court said:

"It is now well settled that if the work contracted for is within the `trade, business and occupation' of defendant, or within the category of operations, it may not be contracted for except under the conditions imposed by Section 6 of the Compensation Act." (Section 6 of the Act is now incorporated in LSA-R.S. 23:1061.)

Under LSA-Revised Statutes 23:1061, it is well settled that a direct contractual relationship between a principal and a subcontractor's employee is not necessary to effectuate the provisions of that section of the statute. Wysinger v. Godfrey, 86 So.2d 597, La.App., 2 Cir. (1956); Hollingsworth v. Crossett Lumber Co., 184 La. 6, 165 So. 311 (1935); Seabury v. Arkansas...